Mr. Seward to Mr. Adams
Sir: The third article of the treaty to settle and define the boundaries between the territories of the United States and the possessions of her Britannic Majesty in North America, for the final suppression of the African slave trade, and for the giving up of criminals and fugitives from justice in certain cases, ratified August 22d, 1842, is in the following words:
In order to promote the interests and encourage the industry of all the inhabitants of the countries watered by the river St. John and its tributaries, whether living within the State of Maine or the province of New Brunswick, it is agreed that, where, by the provisons of the present treaty, the river St. John is declared to be the line of boundary, the navigation of the said river shall be free and open to both parties, and shall in no way be obstructed by either; that all the produce of the forest, in logs, lumber, timber, boards, staves, or shingles, or of agriculture, not being manufactured, grown on any of those parts of the State of Maine watered by the river St. John or by its tributaries, of which fact reasonable evidence shall, if required, be produced, shall have free access into and through the said river and its said tributaries having their source within the State of Maine, to and from the seaport at the mouth of the said river St. Johns, and to and round the falls of the said river, either by boats, rafts, or other conveyance; that, when within the province of New Brunswick, the said produce shall be dealt with as if it were the produce of the said province; that, in like manner, the inhabitants of the territory of the upper St. John, determined by this treaty to belong to her Britannic Majesty, shall have free access to and through the river for their produce, [Page 100] in those parts where the said river runs wholly through the State of Maine: Provided always, That this agreement shall give no right to either party to interfere with any regulations, not inconsistent with the terms of this treaty, which the governments, respectively, of Maine or of New Brunswick may make respecting the navigation of the said river, where both banks thereof shall belong to the same party.—( U. S. Statutes at Large, vol. 8, p. 574.)
It has come to the knowledge of the government of the United States that an export duty of 20 per cent, per thousand feet has recently been levied and exacted, in the province of New Brunswick, upon lumber which is sawed from logs the produce of the State of Maine. It is the opinion of this government that this export duty is in contravention of the treaty provision which I have recited.
You are, therefore, instructed to present a remonstrance on the subject to her Majesty’s government, and to ask that the duty levied may be hereafter discontinued, and that in the few cases in which it has been paid, under protest, the amount so paid may be refunded.
The provincial authorities of New Brunswick are understood to take the position that the duty imposed upon American lumber, the produce of the State of Maine, in the province of New Brunswick, is authorized by that provision of the third article before recited which is expressed in the following words:
When within the province of New Brunswick the said produce shall be dealt with as if it were the produce of the said province.
The provincial authorities are understood further to insist that the impost upon lumber, the produce of the State of Maine, in New Brunswick, is justified by the fact that an export duty of the like amount is imposed by the colonial law of New Brunswick upon lumber grown in that province.
The construction of the treaty thus assumed by New Brunswick seems to the United States to be inadmissible. The intent of the treaty seems to be to make the St. John’s, where it is either wholly or in part within the province of New Brunswick, a United States river for all purposes connected with the transportation of produce grown upon lands lying near the head-waters of that river. The object seems to be that such produce shall find its way to the sea without any impediment arising from the fact that a part of the transit over the St. John’s is through the territory of New Brunswick. These intents are clearly expressed in the words which constitute the provision for free access “into and through the said river,” “to and from the seaport at the mouth.” What was intended is not merely access for persons but access for produce grown in Maine; and access from the seaport, in this connection, must mean not only exit from the seaport, seaward, but also access to the port from the State of Maine, with liberty in going out from that port.
Since these intentions constitute the main purposes of the treaty, the provision which is relied upon by New Brunswick, namely, that the lumber, the produce of Maine, “shall be dealt with as if it were the produce of the province,” is to be construed in consistency with that superior purpose, and in subordination to the foregoing general provision. It is a provision intended to be beneficial, not injurious, to the United States.
It seems calculated to secure in New Brunswick to lumber, the produce of the State of Maine, every privilege that lumber might be entitled to which is the growth of that province, and was not intended to subject the former to every burden that New Brunswick may think proper to impose upon her own lumber in the way of domestic taxation or otherwise.
Some light is thrown upon the subject by the fact that, in 1843, a law was passed by New Brunswick for the purpose of imposing an export duty upon lumber grown in that province, which act contained an exception from its pro-visions in favor of lumber cut in the United States, passed down the river St. John’s, and actually and bona fide shipped to the United States.
[Page 101]Her Majesty’s government is understood to have withheld its approval of the law thus passed in 1843, upon a suggestion of the law officers of the Crown that the discrimination, though not likely to be objectionable to the United States, was inconsistent with the treaty.
The exception in favor of United States lumber, made in this provincial act of 1843, proves that, at that early period, the legislation of New Brunswick did not think it had the right under the treaty to impose such an export duty as is now insisted upon.
I need not dwell upon the importance of coming to an early understanding with the government of Great Britain upon this subject The question is one of a class which cannot fail to produce great irritation, as well as much inconvenience.
It is proper to say that the sums hitherto exacted under the treaty are practically inconsiderable. It is the principle and its future operation, rather than the present claims for indemnity, which impart an importance to this subject.
I am, sir, your obedient servant,
Charles Francis Adams, Esq., &c., &c., &c.